Mean Tweets – Defamatory?

Mean Tweets and Clean Hands: Extent of an Intermediaries liability vis-Ã -vis posts by Internet Trolls.

Providers and Intermediaries such as Twitter can safeguard themselves from liability as a result of defamatory and potentially libelous posts/comments made by its users, better known in Internet parlance as ‘trolls’.
Twitter and similar intermediaries are protected by section 10 of the Defamation Act 2013 (The Act), which protects a person or company against a defamation action provided that they are “not the author, editor of publisher of the statement unless the court is satisfied that that it is not reasonably practicable for an action to be brought against the author, editor or publisher.”

Where the identity of the troll is known, Twitter and similar providers can rely on section 5 of The Act as an alternative defence, so long as they take steps such as removing the offending post within a specified period of time or provide the complainant with details of the poster. Where the complainant serves legal proceedings against the poster, section 5 act as a complete defence, even if Twitter decides not to take down the offending post.

Conversely, if the identity of the troll is unknown, Twitter can still rely on a section 5 defence and can still maintain the offensive post on the website, so long as the poster consents to be identified to the complainant or the poster provides his/her details including postal address to Twitter, which can be disclosed to the complainant pursuant to Norwhich Pharmacal Order under CPR r.31.

Intermediaries can rely on other defences such as section 1 of the Defamation Act 1996 and Regulation 19 of the E-Commerce Regulations 2002, which predate the Defamation Act 2013 and remain in force. Twitter could seek to rely on these provisions instead of section 5 of the new Act.

Ayan Ray is currently on work experience at Lawdit

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